Blowing the whistle on government or corporate waste or fraud can be a necessary, although difficult thing to do. Ask Tom Rogers, a noted labor law attorney with Miller, LaSota & Peters, who’ll tell you most cases of employer retaliation against whistleblowers never see the light of day.
Rather than gaining rewards and recognition, a firing and career exile are often more likely. The cases are expensive, difficult to prove and the requirements are onerous. One former state employee warns “be prepared to spend $100,000 on attorneys — and to lose,” and he advises to say goodbye to friends, as relationships will be severed. But every once in a while, things work out for the best. Arizona Capitol Times recently sat down with Tom (he jokes about being confused with Mr. Rogers, the founder of the children’s television show) to learn a little about life as a whistleblower.
How did you get into to labor law≠
I got into it when I first went into the Attorney General’s Office in the mid-70s because I did not have a whole lot of existing assignments. There was an individual who sued the state of Arizona on behalf of all state employees asking then-Attorney General Bruce Babbitt to stipulate or agree to the inquiry of an order that the state of Arizona not violate Title VII, which had been getting more attention in the 1970s. I was asked to oppose that and out of that experience everyone at the office said if there was any sort of suit related to discrimination it was, ‘Oh, Tom Rogers does that.’ So once I was asked to do that I said, ‘Well, if I’m going to do this maybe I should start going to some seminars and focus on that.’ I’ve been in the area ever since.
You have considerable expertise in laws affecting whistleblowers and wrongful discharges. Among state government and departments in Arizona, how common is it to find employers taking illegal reprisals against employees fitting the description of a whistleblower≠
Depending upon the point of view, there are often actions taken against employees and I’ve seen many of them I would categorize as illegal or improper. How many times≠ I’m sure that it happens regularly that people are in some way dealt with unfairly that is probably the result of reporting as a whistleblower.
Whistleblower is one of those terms that is very pregnant. Not everything an employee disagrees with is the reporting of an illegal action by government. If someone disagrees with a policy decision, that may be a legitimate and heartfelt disagreement, but those are not what we consider the reporting of illegal wrongdoing. There can be a difference of policy approach. The kind of thing I’m talking about is waste, fraud or abuse of government funds or programs, or neglect, like if you have a department not doing its job. If those things are reported and the reaction of the administration above that person is to shun, isolate, transfer, or come up with excuses to terminate, those are the types of things we seek to avoid. There will always be disagreements with any government, but it’s when real waste, fraud, abuse, illegality is reported and there is retaliation.
In your experience is there more of that today than when you first got into law≠
I think it’s been pretty constant. You’ll find that, depending upon the local news stories, interest will be raised and as a result of that you’ll have additional people that will start reporting at work. These people were either afraid or too timid to report people before. For instance, there was a spike in reporting of illegal sexual harassment at the time of the Clarence Thomas hearings because there was an awareness. I think right now you’ll see because of the national reporting of the Walter Reed situation that a story that would have been fairly mundane before is now more heightened and you would have people more sensitive to the possibility of nursing home abuse.
By and large, though, it’s been pretty constant. In any large organization maybe one or two people a year will have the chutzpah to go ahead and try to make a change by reporting either internally or externally. It takes a lot. The personality of a whistleblower is unique because in any case they know they will be shunned at the very least, and retaliated against in many instances. There is such a great likelihood that something negative will happen that some people just don’t want to fight the fight.
What we do see, as scandals come forward, is different laws are being created to make it possible for whistleblowers to survive. After the problems with Enron and that sort of thing, you’ll see legislation to protect whistleblowers because if you don’t, all of the incentives go the other way. If you are going to lose your job, your chances for future advancement are going to end — people aren’t going to do it. We always like Erin Brockovich — great whistleblower, great story — but the typical whistleblower is like the gentleman with Big Tobacco that came forward and said, ‘We knew people were dying and I’m not going to lie anymore.’ Well, the industry went after him and sued him. He literally had to file for bankruptcy and he was a high-level executive with a lot of assets.
In the state of Arizona, we make the whistleblower pay their lawyers to prove the case against the state agency or the county agency or whatever. There’s a tremendous financial and career threat to anyone who would be a whistleblower.
But aren’t public employees required to disclose information if something illegal is going on≠
Well, there is a code of ethics that kind of suggests you should do that, but however the state law makes it almost impossible for the layperson to comply accurately with the state whistleblower law.
For instance, it has to be in writing, be given to a certain level of executive, and people trying to stop wrongdoing generally don’t work that way. They’re going to try to raise it internally. They’re not going to give it to the highest authority or the Attorney General. They’re going to try to report it just to stop the wrongdoing. Very seldom do they get the protection — it is almost inevitable that one of the technicalities of the existing statute an employee will not comply with. So there’s really no protection for most people or they have to go out and hire a lawyer at outrageous rates. And you have to have a lawyer to go through these hoops and comply. And then even then, if you go through it at the State Personnel Board level, at the end of the day the agency will appeal and you have to go through it all over again. And the whistleblower has to pay for all of this. It’s not like the Attorney General’s Office is going out, getting a complaint and fully investigating and then using state funds to cover the whistleblower and take appropriate action. You have just the opposite. The attorney general defends the state agency.
Is it as common to find employees are disgruntled and interested in embarrassing an employer≠
The thing that makes the whistleblower law so emotional is that for every genuine whistleblower that is out there and should be protected, there are probably five to 10 employees that realize they are about to be fired. When they find the hammer is going to fall, suddenly they come up with a claim of wrongdoing in the hope to delay action against them while they search for another job or to scare away their supervisors from proceeding with the action. I always try to tell people there are whistleblowers and then there are saboteurs. The people that are trying to suddenly come up with some theory of wrongdoing — waste, fraud or abuse — not because they are trying to stop the practice, but because they are trying to avoid getting fired, is the problem with the whole area. There is not an administrator out there that hasn’t had someone that deserved to be fired that at the last minute claims waste, fraud, or abuse or discrimination just to avoid being fired. It’s a very emotional issue for administrators for that reason.
Why is there an exception for public university employees from state whistleblower laws≠
Their lobbyists are more successful than other lobbyists. They were able to negotiate it. We tried about three years in a row to update the whistleblower protection statute and every year the lobbyists for the University of Arizona and Arizona State University were there opposing an enactment because their own internal procedures, if it’s possible, are even more difficult to jump through the hoops than it is under the state act. Their lobbyists weren’t the only people opposed to it, but they spearheaded the major effort. I have great respect for them, they are most skilled.
Besides procurement, what other areas is one likely to find whistleblower cases≠
You’ll have everything from classic discrimination and reporting of people making mistakes that are harming others. Child Protective Services has always been a perfect example. They were never funded sufficiently to have a caseload where they could get to all the complaint barrages and sometimes people would come forward, not because they were angry, but just to say, ‘Hey, we have cases that need to be reported.’ The other example is people will see tremendous waste on a project. I can recall the redoing of the computer programs for a large state agency; the state had spent about $9 million updating it and it was turning out to be a disaster. As the chief procurement officer for that agency sought to shut it down he was fired for a petty, petty reason. And he was fired before the program was shut down, so the state spent $48 million for this computer disaster that never worked.
Why would somebody fire somebody for that≠ Well, you’ve got large dollars going into public contracts with vendors that often have long histories with the agencies they serve. They have certain favorable impressions of one another and they want to help each other out. Is it collusion≠ Is it illegal≠ I don’t know, but it’s that type of thing that needs to be investigated when a legitimate whistleblower reports things.
How difficult is it for the fired whistleblower to find similar jobs in government≠
Depending upon their level, they may never find one again, at least in the same state. Sometimes it’s in a different industry. Or if they are successful they may be able to go out and be consultants to help others negotiate the system that just did them in.
But not every agency in every case targets whistleblowers and takes them out. But there are enough examples.
Thank you for your time.
You’re welcome.